Order Code RS22028
Updated October 20, 2005
CRS Report for Congress
Received through the CRS Web
CFTC Reauthorization in 2005
Mark Jickling
Specialist in Public Finance
Government and Finance Division
Summary
Authorization for the Commodity Futures Trading Commission (CFTC), a “sunset”
agency established in 1974, expired on September 30, 2005. In the past, Congress has
used the reauthorization process to consider amendments to the Commodity Exchange
Act (CEA), which provides the basis for federal regulation of commodity futures
trading. The last reauthorization resulted in the enactment of the Commodity Futures
Modernization Act of 2000 (CFMA), the most significant amendments to the CEA since
the CFTC was created in 1974. Both House and Senate Agriculture Committees held
reauthorization hearings in March 2005. The Senate Banking Committee held a hearing
on September 8, 2005. The Senate Agriculture Committee approved S. 1566, a CFTC
reauthorization bill offered by Chairman Chambliss, on July 21, 2005. This report
provides brief summaries of the issues in the 2005 reauthorization legislation, including
(1) the market in security futures, or futures contracts based on single stocks, which
were authorized by the CFMA, but trade in much lower volumes than their proponents
had hoped, (2) regulation of energy derivatives markets, where some see excessive price
volatility and a lack of effective regulation, and (3) the legality of futures-like contracts
based on foreign currency prices offered to retail investors.
This report will be updated as developments warrant.
Futures contracts — like other financial derivatives such as options or swaps — gain
or lose value as the price of some underlying commodity rises or falls. They can be used
to avoid, or “hedge,” price risk. That is, farmers, utilities, airlines, banks, and many other
businesses can use derivatives to protect themselves against unfavorable changes in
commodity prices, interest rates, or other variables. Most futures trading, however, is
done by speculators who profit if their forecasts of price trends are correct. (The futures
exchanges are associations of professional speculators.) There are two public benefits to
speculation: speculators provide liquidity that enables hedgers to take positions quickly
and at low cost and to unwind those positions at any time. Speculative trading also
provides a very effective price discovery mechanism: futures prices adjust immediately
to new information and serve as the basis for many physical (or spot market) transactions
in oil, agricultural, and other markets.
Congressional Research Service ˜ The Library of Congress

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The public interest in regulating futures markets flows from these two functions.
Since futures prices are used as reference points for many physical transactions,
manipulation in the futures markets can affect the prices actually paid by consumers or
received by farmers and other producers. Similarly, the ability to hedge risks allows the
economy to function more efficiently. Federal Reserve Chairman Alan Greenspan
frequently describes the general benefits of derivatives markets. For example:
Derivatives have permitted financial risks to be unbundled in ways that have
facilitated both their measurement and their management.... Concentrations of risk
are more readily identified, and when such concentrations exceed the risk appetites
of intermediaries, derivatives can be employed to transfer the underlying risks to other
entities. As a result, not only have individual financial institutions become less
vulnerable to shocks from underlying risk factors, but also the financial system as a
whole has become more resilient.1
How much government regulation is needed to see that derivatives markets remain
sound, to keep markets competitive and free from fraud and manipulation, and to insulate
the financial system from shocks arising from sudden large speculative losses? These are
the basic questions for congressional oversight of the Commodity Exchange Act (CEA).
The Commodity Futures Modernization Act of 2000 (CFMA)
In several respects, the CFMA was a fundamental rethinking of the government’s
role in derivatives markets. Before 2000, the CEA was intended to regulate all forms of
derivative trading; any contract “in the character of” a futures contract was to be traded
only under CFTC regulation. However, this “one-size-fits-all” regulatory scheme did not
correspond to the reality of the marketplace, where a very large over-the-counter (OTC,
that is, off-exchange) derivatives market was flourishing without CFTC oversight. Under
the CFMA, most trading in OTC derivatives was placed beyond the reach of the CEA
(and thus the CFTC). Where markets were off-limits to small investors, market discipline
was deemed to be a sufficient regulatory force.
The exception was for contracts based on agricultural commodities, which were
thought to be susceptible to price manipulation. Agricultural derivatives, as a result, can
be traded only on CFTC-regulated futures exchanges.
The CFMA provided for the creation of unregulated futures exchanges, where all
trading involved sophisticated or professional investors. (Again, there is an exception for
farm derivatives.) Potentially, therefore, the futures exchanges can reconfigure
themselves into largely unregulated entities, and several such entities have registered with
the CFTC. However, since the enactment of the CFMA the major futures exchanges
continue to operate in (more or less) the same regulatory environment as before. Both the
exchanges and the OTC markets have experienced strong growth in trading volumes since
2000.
1 Remarks by Chairman Alan Greenspan at the 2003 Chicago Fed Conference on Bank Structure
and Competition, Chicago, Illinois (via satellite), May 8, 2003.

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In the 108th Congress, the House and Senate Agriculture Committees held oversight
hearings on the CFMA.2 At both hearings, CFTC Chairman James Newsome stated his
view that the CFMA had worked well and that the CFTC was able to use more flexibility
in matters such as approving new contracts for trading and accepting the registration of
new exchanges and clearing houses. The new entrants generally sought to introduce or
facilitate innovative electronic forms of trading. His view was that legislative
amendments to the CEA were not needed.
Issues for the 109th Congress
Given the CFTC’s satisfaction with its role under the CFMA, and the growth of
trading volumes and continued innovation in the markets, it does not appear likely that
another thorough overhaul of the CEA is in prospect for 2005. Several members of the
House Agriculture Committee, in fact, expressed support for a one-line reauthorization
bill that made no amendments to the CEA. During hearings before the House and Senate
Agriculture Committees in March 2005, however, the CFTC and industry participants
suggested several areas where fine-tuning of the CFMA might be desirable. Several of
these issues are addressed by S. 1566, the bill approved by the Senate Agriculture
Committee on July 21, 2005, and are summarized briefly below.
Security Futures
Security futures are futures contracts based on single stocks or narrow-based stock
indexes. Until the CFMA, these contracts were not permitted, largely because of concerns
that they could be used to manipulate stock prices. The CFMA provided for joint
regulation of the new contracts by the Securities and Exchange Commission (SEC) and
the CFTC. Perhaps as a result, the process of writing trading rules was slow: the first
contracts were not traded until 2003.
Trading volumes in security futures trading remain very low. The only currently
active market is OneChicago, a joint venture between the Chicago Board of Trade
(CBOT), the Chicago Mercantile Exchange (CME), and the Chicago Board Options
Exchange (CBOE). During the third quarter of 2005, average daily volume was 28,090
security futures contracts. By contrast, 41.2 million stock options were traded daily in
September 2005 on the CBOE.
Single-stock futures volume may continue to grow — 2005 volume is more than
double that of 2004 — but it will be difficult to compete with the highly liquid and
well-developed stock options market, which offers contracts that permit most ( if not all)
the investment strategies that security futures do. On the other hand, it is not uncommon
for new futures contracts to fail to excite enough trading interest to sustain themselves;
this is still a possible fate for security futures.

2 U.S. Congress, House Committee on Agriculture, Commodity Futures Modernization Act,
Hearing 108th Cong., 1st sess., June 5 and 19, 2003, and U.S. Congress, Senate Committee on
Agriculture, Forestry, and Nutrition, Review of Commodity Futures Trading Commission
Regulatory Issues, hearing, 108th Cong., 2nd sess., May 13, 2004.

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During the reauthorization hearings in March 2005, several witnesses argued that the
dual regulatory regime is cumbersome and hampers trading. CFTC Chairman Brown-
Hruska stated that the CFTC would continue to work with the SEC to reduce duplicative
regulation. Representatives of the Chicago futures exchanges called for an amendment
to the CFMA to allow security futures to trade like any other futures contract. This would
allow the exchanges to set margin requirements on security futures, as they do on all other
futures contracts.3 (At present, margins are set at 20% of the underlying stocks’ value, a
figure that was determined by the SEC and CFTC to be comparable to margin
requirements on stock options, as the CFMA requires, but which is much higher than
most futures margins, which generally are in the range of 3%-5% of the value of the
underlying commodity.) By reducing margin requirements, the exchanges would lower
the cost of trading security futures and would likely boost trading volumes. However,
such a move would be resisted by the options exchanges, who would argue unfair
competition, and perhaps by the SEC, which would be concerned about the possibility of
manipulation of stock prices.
Section 7 of S. 1566 provides for a two-year pilot program, during which the futures
exchanges would be able to set margins on security futures. Potentially, margins could
be set much lower than the current 20%, lowering the costs of trading security futures.
The provision is controversial because it appears to undercut SEC jurisdiction over
security futures, in addition to the competitive and market integrity concerns mentioned
above. The Senate Banking Committee held a hearing on this issue on September 8,
2005, where Robert Colby of the SEC expressed concern that the bill’s provisions could
compromise investor protection and market integrity.
Energy Derivatives
Energy markets have seen turmoil in recent years: prices have been unusually
volatile, and there have been several episodes of fraud or scandal. During the California
electricity crisis of 2000, severe shortages were combined with soaring prices, and several
energy trading firms (including Enron) were found to have manipulated the partially
deregulated electricity marketing system that California had established. After the
collapse of Enron, numerous energy firms were found to have made fictitious “wash”
trades, for purposes of manipulating prices and/or falsifying their accounting statements.
Natural gas markets have experienced several price spikes, attributed to the market
reaction to false information about market prices and supplies. Finally, many commercial
users of energy commodities suspect that hedge funds and other financial speculators have
driven prices higher than fundamental economic factors of supply and demand would
warrant, and have called for a limit on the size of speculative futures positions.4
3 In futures contracts, “margin” is the amount of money that a customer must deposit with a
broker in order to maintain a position in the market. Margin serves to protect the broker and the
exchange from the risk of customer default. If margins are set too high, trading becomes too
expensive and volume drops. If they are too low, exchange members and the clearing house are
vulnerable to credit (or default) risk.
4 See, e.g., the testimony of Oliver Ireland, on behalf of Huntsman Chemical, a member of the
Industrial Energy Consumers of America, before the Senate Committee on Agriculture, Forestry,
and Nutrition, Mar. 10, 2005.

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Some observers attribute these problems in the markets to a regulatory gap, arguing
that neither the CFTC nor the Federal Energy Regulatory Commission (FERC) has
sufficient authority or resources to enforce anti-fraud and -manipulation rules. A
particular focus of these arguments is the over-the-counter (OTC) market for energy
derivatives, which under the CFMA is subject to very limited oversight. During the 108th
Congress, the Senate twice voted down measures to give the CFTC more regulatory
powers, such as the authority to collect market data from traders in OTC energy
contracts.5 Similar legislation — H.R. 1638 and S. 509 — has been introduced in the
109th Congress.
Others, including the CFTC, maintain that regulators already have sufficient
authority to investigate and punish fraud, and that price volatility itself is not evidence of
manipulation. CFTC chairmen have repeatedly rejected the view that new legislation is
needed. In a 2004 speech, acting chairman Sharon Brown-Hruska defended the CFTC’s
enforcement record, pointing to actions taken against false reporting of natural gas prices
and market manipulation by Enron and others: “In my mind, this era in which many acted
with a lack of integrity and violated the law will soon be a part of history — one that will
not be repeated as a result of our enforcement actions.”6
S. 1566 proposes to raise civil and criminal penalties for manipulation (or attempted
manipulation) of commodity prices. The bill also clarifies that the CFTC’s antifraud
authority applies to “principal-to-principal” off-exchange derivatives contracts, including
energy transactions.
H.R. 3863, the Gasoline for America’s Security Act, which passed the House on
October 7, 2005, would direct the Federal Trade Commission to study the trading of
refined petroleum products on the Nymex futures exchange. Matters to be addressed by
the study include the price effects of Nymex contract specifications and the effectiveness
of temporary trading halts.
Retail Foreign Exchange Contracts
The Commodity Exchange Act generally prohibits the selling of off-exchange futures
contracts to small “retail” investors. There has been some dispute over whether this
prohibition applies to contracts based on foreign currency rates; in 1974, Congress
exempted contracts based on foreign exchange and Treasury securities from CFTC
regulation (the so-called Treasury Amendment). The CFTC has long argued that this
exemption applied only to professional markets, and that it had authority to prevent the
sale of futures-like contracts to small investors. The CFMA addressed this question, and
the CFTC believed it had been given clear authority, but a 2004 federal court case7 held
that certain retail foreign exchange contracts were not futures contracts and could be
legally traded. In 2005 hearings, CFTC Chairman Brown-Hruska suggested that
5 S.Amdt. 876 and S.Amdt. 2083. See CRS Report RS21401, Regulation of Energy Derivatives,
by Mark Jickling.
6 Speech by CFTC Acting Chairman Sharon Brown-Hruska, to the International Swaps and
Derivatives Association (ISDA), New York, Nov. 17, 2004.
7 CFTC v. Zelener, 373 F.3d 861 (7th Cir. 2004).

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additional legal authority or clarification might be needed to protect small investors from
fraud.
S. 1566 includes provisions (in Section 4) designed to address the impact of the
Zelener decision, specifying that the CFTC has jurisdiction over foreign exchange
contracts offered to retail customers that feature margin or leveraged financing, and that
are entered into for reasons other than commercial or personal use of a foreign currency
(that is, speculative contracts).
In testimony before the Senate Banking Committee on September 8, 2005, the
President’s Working Group on Financial Markets (representing the Federal Reserve, the
Treasury, the SEC and the CFTC) recommended that the retail foreign exchange language
in S. 1566 be amended to ensure that it did not inadvertently impose restrictions on large
foreign exchange contracts traded by banks and other institutional investors.

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